Russell Wangersky: Case could send a chill through municipalities

Last week, the Supreme Court of Canada refused to hear an appeal. That’s nothing new — it happens almost every week.

Russell Wangersky

People who don’t like the results in lower courts feel they have to go all the way to the top. Governments, unions and insurance companies — with in-house legal teams and plenty of cash — seem to launch appeals to the court almost as a matter of course.

Sometimes the court will hear an appeal, more often, it won’t.

But the results of this court decision might just be coming to your town — directly to your town.

Municipal leaders, often with federal and provincial funding, have rushed to satisfy their constituents.

But now, an official with the Association of Municipalities of Ontario (AMO) is warning that towns and cities might want to pull back from things as simple as allowing tobogganing.

“It may be that municipal governments just don’t do these kinds of activities — they totally withdraw from them,” Pat Vanini, the executive director of the AMO, told the Canadian Press.

The case that’s causing the concern is Stephen Campbell vs. the Municipal Corporation of the County of Bruce.

The case in a nutshell? Bruce County built a mountain bike trail with a trials area that was supposed to train riders for any obstacles they might meet on the trail. In 2008, Stephen Campbell, a 43-year-old experienced mountain biker, fell off one of the training obstacles and was left a quadriplegic. He and his family sued, and the municipality was found 100 per cent responsible.

The municipality had taken steps. As the judge indicated, “The municipality installed signs that cautioned riders: (1) to ride within their ability and at their own risk; (2) that helmets are mandatory; and (3) to yield to other groups. The municipality promoted the Park as a family venue. A promotional brochure for the Park contained a warning that mountain biking can be risky and that visitors should ride within their own abilities and at their own risk.”

But that wasn’t enough; while several things were missing, one of the key issues was that the unsupervised park had not been keeping track of injuries on the trail.

The original trial judge found that “the municipality had breached its duty in five ways: (1) its failure to post proper warning signs; (2) its negligent promotion of the Park; (3) its failure to adequately monitor risks and injuries at the Park; (4) its failure to provide an ‘adequate progression of qualifiers’; and (5) its failure to make the Trials Area a low-risk training area.”

If the municipality had been keeping track, the judge (and subsequent provincial Appeal Court judges) maintained, the municipality would have been aware of seven other accidents in the park, and would have taken preventative measures.

What’s it mean for other municipalities? Well, in Ontario, if they don’t want to face court judgments after inevitable accidents, they are going to have to start keeping track of accidents and incidents, even at hitherto unsupervised sites.

Either way, it means increased costs. For municipalities across the country and those in our region? Well, not all provincial legislation is the same — but it certainly is a judgment that should give those who govern our towns and cities pause.

If you build it, they will come. And likely, eventually, they will fall down and hurt themselves. Sometimes seriously.

Then they can legitimately ask you why you built it that way, and question whether you’re to blame.